Can foreigners register .au domain names ?

Over the past few years there has been a greater interest in the purchase and or registration of .au domain names by non-Australians. The good news is that auDA Policy allows for foreigners to hold a net.au and com.au domain names.

We previously wrote about this topic back in 2011, but due to numerous requests we’ve published this update. The auDA Policy that regulates eligibility to hold .au domain names is the 2012-04 – Domain Name Eligibility and Allocation Policy Rules for the Open 2LDs (‘Policy’).

The Policy has two important elements:

1. Eligibility; and
2. Basis for Registration.

Eligibility

To be eligible, a foreigner must fall into one of the following categories (Schedule C of the Policy):

d) a foreign company licensed to trade in Australia; or

e) an owner of an Australian Registered Trade Mark; or

f) an applicant for an Australian Registered Trade Mark;

Paragraphs (d), (e) and (f) all allow independent ways for a foreign registrant to become eligible to hold a .net.au or .com.au domain name.

Paragraph (d) requires a foreign registrant to obtain an ARBN, which in short, is an ABN for foreigners. This allows the ARBN holder to trade in Australia, subject to compliance with some requirements. There are a number of costs associated with this method, firstly there is a substantial government application fee in the order of $1500. Once approved, the ARBN holder is required to file financial statements with ASIC each year, and pay an annual fee of about $1500 in order to maintain their registration.

This method of eligibility suits foreign registrants who actually operate in Australia and have a local presence (or intend to have a local presence). The down side of this method is the cost.

Paragraphs (e) and (f) provide that the ‘owner’ or ‘applicant’ of an Australian trademark is eligible to hold a domain name. Many international brands use this as the basis to hold a .au domain name which reflects their brand. The most often misunderstood point is that an applicant of an Australian trademark is also eligible, the effect of this is that once a foreigner applies for a trademark and is allocated a filing number they become eligible.

This method of eligibility suits international brands and domain investors.

Once a foreigner is eligible to hold a domain name they need a basis for registration.

Basis for Registration

Schedule C of the Policy provides:

Domain names in the com.au 2LD must be:

a) an exact match, abbreviation or acronym of the registrant’s name or trademark; or

b) otherwise closely and substantially connected to the registrant, in accordance with the categories of “close and substantial connection” set out in the Guidelines on the Interpretation of Policy Rules for the Open 2LDs.

Paragraph 2(a) is self-explanatory, and allows an eligible registrant to register a domain name which is basically an exact match abbreviation or acronym of the registrant’s name or trademark. An example of this may be where Example LLC from the USA has an Australian trademark for the mark ‘Activate’, which it uses as branding for its fly spray product. Example LLC could register example.com.au or activate.com.au on the basis of paragraph (a).

Paragraph (b) provides for a much broader basis for registration. The close and substantial connection allows registration of a domain name that reflects a product or service that a registrant may offer. In terms of domain name investors, this includes domain monetization, for example use with pay per click parking pages. This is by far the most popular basis for registration.

It is also worth noting that once a registrant is ‘Eligible’ then they can register more than one domain, they are not limited to a single domain. This equally applies to domain name investors who seek to use a trademark application as the basis upon which to acquire a portfolio of domain names for monetization purposes.

 

*This blog post is based on the Policy position as at 30 June 2016. This is not legal advice and you should obtain legal advice specific to your particular circumstances.